JONES v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO

Reset A A Font size: Print

District Court of Appeal, First District, Division 2, California.

JONES et al. v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO.

Civ. 13845.

Decided: July 02, 1948

Robert L. Lamb and Theodore Tamba, both of San Francisco, for petitioner.

To this application for a writ of mandate no return has been made by respondent. The application rests on the verified pleadings which must be taken as admitted for failure of respondent to controvert them.

An action was commenced in the superior court against these petitioners on September 30, 1942. Their verified answer was filed on November 13, 1942. On March 4, 1947, the plaintiff in the action filed his memorandum of motion to set the cause for trial. Whether the cause was set does not appear, but no trial was had, and on April 9, 1948, these petitioners filed their notice of motion to dismiss on the ground that the cause had not been brought to trial within five years of the filing of the complaint. This motion was denied.

The motion should have been granted and the statute and the authorities leave no alternative. Section 583 of the Code of Civil Procedure makes it mandatory to dismiss an action which has not been brought to trial ‘within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.’ Here it is alleged that no such stipulation was made. A motion to set the cause for trial made within the five year period does not toll the running of the statute. 9 Cal.Jur. 543.

Writ granted.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.